tv [untitled] August 26, 2012 4:30pm-5:00pm PDT
>> then the language of the charter was changed by initiative. how do we know a changeù was in order too must bel5@ in office, or to make clear that was not with the voters intended? the fact that there is a change after something happens does not tell you in which direction they intended it to be and the words in relation to the duty. there were other words available if the initiative had wanted to say while you are holding that office or conducting that office. how do we know which direction? it is difficult to tell, you have to adopt the interpretation that favors the accused in this situation. if there is an easier way to answer that, in the statute has to be harmonized with other bobs
impossible, if it will not do violence to the interpretation of the statute. i think you have to look at the current charter definition of official misconduct that was enacted after mizola and draws from opinion to say that the drafters, whoever they may have been, were well aware of what mizola had to say about the issue and has to be interpreted in a way that is consistent with this decision. there is one other point i would like to make. i am certainly willing to entertain -- >> can i stop you while we're on this point. is there any justification for why this should not apply to an elected official who was not yet sworn in? to say the charter is not perfect and the people did not vote in a provision that was
perfect is not very compelling to me. i want to know why we should take a restrictive view of public official that would absolves him or immunize him from being suspended from official misconduct prior to his swearing in. >> there is a very simple answer, the primacy of the will of the electorate. there is a provision in place, called the recall that can be used to remove a public official that the voters want to get rid of. that is a democratic way to do it. admittedly it can take time, because you have to wait six months until after the official is sworn in to start gathering officials. it can take close to a year to remove the public official, but that is the democratic way to do it. this is far too susceptible to politics.
to g>> the voters knew all thatn theory. they understood there was a recall option available and said we need this. it is not a week or the supervisor or the state said you need to do something different and override the recall provision, why does this not harmonize with the voters sent we want an additional tool or process, and we will design and put it into place, because in our view of the recall is not sufficient? whenever the reasons for why they wanted to do this, it is the voters decide we want another tool, not some third party or our determination that adds this. >> well, to be fair, i do not think they created this for almost 100 years. the power to remove for official
misconduct has been in the charter. they treat the procedure a bit, creating the ethics commission. >> exactly. to answer your question, i think you have to assume the voters were aware of the state of the law. the state of the law has not been in the state of california that allows a person who has been elected but not yet sworn into office to be removed for any act that occurred before they're sworn into office. there's just no such case that exist. that is why they have had to go to other jurisdictions to persuade you. and again, beating a dead horse -- ." >> we do not know other those
cases do not exist because no one tried or no such factual situations. >> of course. i do not want to move away from this if there is anything left unanswered, but one other point i want to make about this is the mayor has argued that law- enforcement -- a law enforcement officers should never run afoul of the law or commit anything that should be charged as a crime and the law enforcement officers should never be convicted. the key witness said you get convicted, you should be fired immediately. that is not the case in san francisco. there have been many law enforcement officers that have been conducted reaching have been convicted of misdemeanors and have remained on the force honorably. there is a two-part process. you determine whether thereó' is
official misconduct, and then you decide whether or not this was a correct use of the mayor's discretion. i would maybe add something to that, as suggested in the brief. and i think if you did find some level of official misconduct, you could make the recommendation that it does not warrant removal. the mayor has argued -- law enforcement has a special duty because they are required to investigate, required to do certain things. you could look at what happens with judges who can be found to uphold the law and apply it fairly. i personally know several judges who have been convicted of misdemeanors and not removed from office. the fact of the matter is, it has to be recognized that people sometimes make mistakes and sometimes run afoul of the law. it does not necessarily warrant
removal. clearly the facts of this case do not warrant removal. and with the commission has further questions, i will submit. >> i want to talk to you about a couple of facts. and in my view, i will credit the inspector's testimony because he submitted a decoration and was far prospect examined on its -- and was not cross-examined on it. in my mind it is credible that he told him he sold his gun in 1996 to some could thaadet. what is the justification for making this untrue statement for the inspector? >> well, i think the question assumes something -- it may be an understatement, but as you yourself focused in on, how do
you know that it was made with any wrongful intent or intentionally? perhaps the sheriff did not remember what happened with the gun? i cannot give you a proper answer on that. i cannot give you a proper explanation. i can't reiterate what the mayor said, which is that is not anything that would warrant removal. if not, why would we even discuss it? is it to make weight because the rest of the allegations are not sufficient? in my view whether or not the share of made a truthful or untruthful statement regarding the guns really does not have more -- does that have relevance. the point is to get it out of the hands of the person who is accused and into law enforcement hands. that is the point. that is what was done here. wwhether it went to the sherif's department and then the police department ismdo really immater.
who knows why the lawyer objected to the transfer. i do not. >> staying to the facts a little bit, i have been troubled by the question as to whether or not in determining whether or not the mayor acted reasonably in exercising his discretion he could take into account the events or acts that occurred between the time of december 31 and march 19 date when he acted. one of the troubling things is miss lopez's assertion of the attorney/client privilege. based on her testimony, it was absolutely clear to me and clear to the court there ruled against her on this point that she was
not talking to her as a lawyer. she talked to her over a time of the year about problems with her marriage and said she talked to her as a friend. when she talked to ms. haines and told her about the discussion, she did not say i went to miss madison as my lawyer. it was clear she was saying i want to miss madison it did not think she would disclose it, i thought it would be confidential. there is not any evidence in the record that supports the claim of attorney/client privilege. that troubles me that in an investigation it would have been the one thing if the sheriff had set on january 4 when this first thing first rose, i did a terrible thing, it was a
mistake, i am sorry about it, but that is not the course of conduct they took for the next three months, which is -- two months, which is essentially to stonewall. can the mayor take that into account? >> in my view, no. primarily for the fact that ms. lopez had a different attorney. there was one lawyer representing the two of them, and might be a different situation, but whatever actions were taken in asserting the attorney/client relationship cannot be attributed to the sheriff. no evidence. to go it can be attributed to the share to the fact that he said i did not want the raise, i want to get this over with and lay the facts out and not let the newspaper tell me what the facts are. if he had done that on j. griffitanuary 5th, i do not thiy
of us would be here. qlk>> but assume she would do t he told her to do. it assumes a lot of things that may not be true. i do agree with you the mayor can take into account events after he was sworn in up until the time of the plea. i also think you should take into account what the sheriff was able to do during the time that he did serve. it is clear from testimony that he was in the midst of accomplishing significant progress in the sheriff's department. >> i want to ask you about the video. in their she refers to the sheriff of having sent -- as having said he is a powerful man. the mayor is arguing that demonstrates the concerted use of his power oa share to get
advantage in a custody dispute. why isn't that the most logical reading of that testimony? what else could he have meant? >> here is what i see as the problem with the whole powerful man argument. there is no specific language? and you are a powerful man can mean any number of things. yes, it is a reasonable interpretation that he is an elected official, he has or believes himself to have more power than the average person. i think there is a reayuñ questn about the truth of that statement. i do not know if you go into court in a custody dispute you y,k treated any differently by a bench officer by virtue of the fact you hold public office.
but getting back to your question, i think that is a reasonable interpretation, but i think having heard the explanations from both the share of and miss lopez, -- sheriff and miss lopez, it is reasonable he was talking about crime -- child custody laws and how they may favor the person who has citizenship here, and certainly -- will come along way from the days when the custody of a child was pretty much automatically awarded to the mother. the father has significant rights that are recognized in family court. >> thank you. >> thank you, commissioners. i will see how much i can cover
in five minutes. i will talk about the facts, because i think some of the facts may be legal questions that are based easier. we're making a reference that we have been a real record before the commission. one thing that is crucial here is a court of conduct is pled. it is a course of conduct that began on december 31, 2011 and continued until the day the sheriff was suspended. it includes his missteps and his behavior in the investigation, public statements, and most significantly, the discredit and dysfunction that he would bring to the sheriff's department or to continue as of conduct and that department after march 19, 2011. as we look at this, the timing issues go away. i think that the commission was bought on on the significance of mizola, which is that it did not
speak to the timing issues. all of the policies favor the timing of immunity. we do not to go there, because we have a course of conduct where many of the consequences that spun out of misconduct were preventable. that share of mirkarimi by his :#p those consequences. >> let me ask you about mizola, because i find both of you off on what it means. i am looking at page 149 of the opinion. the court goes into the assertion that official misconduct in two -- under attack is virtually the same as in office. it then refers to the black law dictionary and amamjor -- in the
black law dictionary it does have a language by a public officer in relation to his office. the court, using that, finds that means it would have to be !)gmisconduct that occurs, but o the direct relationship of the alleged wrongdoing to the office held. it also says the violation or omission of the committed while in office. i understand you are now saying this bill talk with unlawful conduct, and we're dealing with wrongful conduct. i appreciate that distinction, but the charter uses that in relationship to the duties of office that we use in the charter. why should we not follow how mizola interpreted in relation to the office and apply it to the charters? it is the same language in the same words. it requires a much more direct
relationship than you are suggesting is required. >> that is a good question, and easy answer and hard one. the easy answer is that it dealt with a charter provision regarding official misconduct, no definition whatsoever. they have to come up with the definition. >> you understand we have very little case law. >> in 1995 the voters took -- came up with a definition. they have changed it cents. -- changed it since. i have here, and i do not have multiple copies for the commission, what i have here is the black law definition that was quoted at mizola and the beginning of the chartered definition. it continues to add the decency language. so the thing about the blacks
language is it did not get into the decency issue and professional standards issue. some o the amjur definition has that and the relationship test is the standard required of an official who holds thought office. >> their point, but you can see did the decency clause is limited -- fair point, but you conceded the decency clause is limited. i cannot see any reason why the inaction clause would have a certain type of relation to the duties, but the contract clause would have a different one. i think they have to be the same. it is going to relate to the duties, it has to relate to the duties in the same way. >> they do not, and the reason why is this. we look at professional licensure cases, realistic and
lawyers. you can permit a wrongful act to show you do not the qualities -- commit a wrongful act to show you do not have the qualities to be in that profession. that alone satisfies the relationship test. the relationship test does mean very different things when you're talking about a strictly- construed legal duties, which is what blacks was focused on, but the charter why didn't the definition to include all wrongful behavior and that encompasses violation of that office-specific standard. i do not think the relationship test means the same thing, particularly when we think about how much it was focused on on lawful behavior. there was no violation of a statutory duty here. we have a new definition now, so we think we need to look at mizola discussion and the need for something to tied closely to statutory duties as something that was also tied to the
definition of unlawful behavior. so the issue is different. the relationship test is different. that is why it is ok for a real- estate agent to have a conviction for possession of drugs, but not ok for a peace officer to have a conviction for possession of drugs. they're both indecent conduct, but one has a relationship with the duties of the position, the other one does not. this is a moral cause into relationship order of the ethics and morals we expect a person in this particular position to have based on the trust issue. >> you have advocated a common- sense test? >> that is what the law says. we have advocated. explain to me why it i as a commissioner on the ethics commission should be comfortable applying a common- sense test, and use common sense should not be applying.
to go the common sense is what do people in this position do? as commissioners, we do not know that. here is what a cheap officer is expected to do. we have all of the different responsibilities of a share, whether it is policy responsibilities, exhibit, documents. so it is a common-sense test but a fact-based test about what people in this office do and one of the functions of the commission has been to collect that evidence, and that evidence supplies was in relationship to the duties of office. it is a common-sense relationship and that sense. >> i have one other question, and i apologize for monopolizing your time. in page 9 of the brief you
appear to agree there is a difference between personal misconduct and official misconduct. do i have that correctly? >> in that there are something that you could do that are completely personal that would not be a basis for removal. yes. commissioners, i think the facts help us as much as they help us with what the relationship test is, they help us understand if this warrant removal. the fundamental removal is -- it begins with the premise that this is the non-by let misdemeanor, a fact we know not to be true based on the testimony that came in during the hearing. then they say even if that was, it is still not enough. there needs to be more. i think the evidence that came in on the conduct shows it was more. beyond that, the consequences that have followed for this department, law enforcement in this city and domestic violence law enforcement in particular,
the share of has made statements that alienated victims, that discouraged -- engaged in t(conduct that was -- that would discourage any victim from coming forward in reporting a crime that is committed by a high official. these are things the share of cannot do. he did them and did these things as a consequence of what happened, but the choices along the way. these choices, as well, or wrongful conduct. the share consistently took action that caused further negative consequences for his department and the city. there is no question that this type of conduct warrants removal. he committed a violent crime against his wife. he violated that trust. he is not suited to fulfill the trust of this office. >> overruled. >> i concluded. thank you for your time.
>> want to say a couple of things. first, i want to thank the parties for their arguments and cooperation throughout the proceedings. as you and the public know, this as you and the publií some whate engaged in, and your cooperation was very helpful in getting us through it. i also want to thank mr. emblidge who has donated his and his firm's time pro bono and the commission staff for their help, as well as the public. your interest has been significant, and we certainly appreciate the role you play in the commission doing its work. so here is the plan. let's take a short break, and after the break we will begin
with public comment. it will be limited to two minutes. is there a procedure you would like us to follow as far as people lining up, or how should we -- >> [inaudible] >> your idea would be to start with the people outside, and then have people inside to public comment at the end? what are you saying? >> [unintelligible] >> we should do public comment first. right, ok. and then you want them to file out after they have given their comment, and then have to come back in? >> [unintelligible] we already have a line set up >> ok, ok.
do you have any estimate of how many people are lined up outside? >> [inaudible] >> ok, given those numbers -- i want to ask my fellow commissioners, should we take a 10-minute break and then go through comp -- public comment, even if that means that plunge occurred around 1:00 p.m. or later -- lunch occurs around 1:00 p.m. or later? or would you like some other procedure? take a short break now, go through public comment, and then take a lunch break. ok, let's take 10 minutes.
let's come back at 11:10 a.m. and then go to public >> we are back in session and we will now take public comment. before we begin with the citizens in the room, mr. bembridge -- emblidge has a brief comment. the correct two commissioners received -- >> two commissioners received a brief e-mail with comment an argument about the issues before the commission appeared that email has been forwarded to the council for both parties and will be entered into the record as part of public comment.
>> thank you. welcome to the public. >> good morning, commissioners. >> please, speak into the microphone. >>(wñ morning, commissioners. i am nancy coleman. i a$ñ1 mirkarimi's mother. i am here to support my son, but i have an additional unique perspective. i sit on the human rights commission for the state of rhode island, appointed by the governor. like you, we have to make difficu%:l decisions that affect people's lives. we must sort through a lot o conflicting information to reach a fair and just result. facts do matter, not innuendo, rumor, or gossip. there was a rush to jen